Archive for November, 2017

‘The Old Privy Council decision in Cooper V Stuart [1889] was based on the factual errors that Australia was peacefully settled and that Aborigines were never in possession of the land’. Professor Bruce Kercher, An Unruly Child, A History of Law in Australia, 1994

London – 1889, April 3: Lord Watson, Lord Fitzgerald, Lord Hobhouse, Lord MacNaghton, Sir William Grove, in Cooper V Stuart [1889] 14 AC, Privy Council of the United Kingdom, ruled: [13] ‘There was no land law existing in the Colony (New South Wales) at the time of its [peaceful] annexation to the Crown’.

Sydney – 1790, December 13: ‘Bring in six [6] of those natives who reside near the head of Botany Bay, or if that should be found impractical, to put that number to death…cut off and bring in the heads of the slain’. Extract: General Orders, Governor Arthur Phillip to Marine Captain Watkin Tench, Sydney, 13 December 1790, Historical Records of New South Wales.

Canberra – 1992 – June 3: The High Court of Australia, Mabo and Others V Queensland (No. 2) 1992, in a majority 6:I judgement, Justices Mason, Brennan, Dean, Gaudron, Toohey, Justice Dawson dissenting, found proposition [13]; ‘There was no land law…Aborigines were never in possession of the land’[was] wrongly decided’. Kercher. ibid.

‘Despite recognising native title, these judgements upheld the feudal basis of Australian land law. The High Court in Mabo V Queensland confirmed the feudal origins of Australia’s land law. The majority claimed that the Crown acquired ultimate title, known as ‘radical title’ of all Australian land upon colonisation’. http.//anu.ed.